Culver Center Partners East #1, L.P. (Culver Center), sent by e-mail a notice to pay rent or quit to the leasing manager of its tenant, Baja Fresh Westlake Village, Inc. (Baja Fresh). The parties' lease authorized electronic service of notices, as well as service by personal delivery and certified mail, but did not identify an individual to whom notice should be directed or provide an electronic notification (e-mail) address at which Baja Fresh agreed to accept service. Although Baja Fresh actually received the notice, the trial court granted Baja Fresh's summary judgment motion in this unlawful detainer action because Culver Center failed to present any evidence the electronic notice had been delivered to the street address specified in the parties' lease. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Lease
On May 16, 2001 Baja Fresh entered into a five-year commercial lease with Culver Center's predecessor in interest, Westside Walk, LLC, to occupy the property located at 10768 Venice Boulevard in Culver City (the property). On January 18, 2006 Baja Fresh exercised its option to extend the term of the lease through August 31, 2011.
Paragraph 5.3 of the lease provides the minimum monthly rent for the property—$8,268.75, for the period September 1, 2006 through February 28, 2009—is due and payable on the first of each month.
Paragraph 31 of the lease provides, "All notices, consents, approvals or demands required under this Lease shall be in writing, and shall be deemed delivered when either (a) deposited in the United States mail, certified or registered, postage prepaid; (b) transmitted by telegraphic or electronic means, with proof of service provided, or (c) delivered in person; in any event addressed to or delivered to the appropriate party at:
"or to such other address as either party may from time to time designate for this purpose."
2. Change-of-address Notices
In May 2007 Culver Center notified its tenants, including Baja Fresh, that it had purchased the property from Westside Walk and that all rental payments were to be sent to "Culver Center Partners-East #1, L.P., c/o Preferred Bank, 325 East Valley Boulevard" in Alhambra.
In May 2008 Baja Fresh sent Culver Center a change-of-address notice pursuant to paragraph 31 of the lease advising it that its new address for service of any notice under the lease was 2000 East Winston Road in Anaheim. The change-of-address notice was signed by Deborah Larson, Baja Fresh's leasing manager.
3. Culver Center's Notice to Quit and Baja Fresh's Response
On January 9, 2009 Culver Center purported to serve Baja Fresh with a five-day notice to pay $14,186.77 in rent (inclusive of maintenance charges and taxes under the lease) or quit and deliver the premises. Culver Center transmitted the notice to quit to Larson by three separate means: (1) certified mail to Larson's business address in Cypress; (2) facsimile transmission to her business address in Cypress; and (3) an attachment to an e-mail sent to Larson's business e-mail account. Culver Center also attempted to effect substituted service on a restaurant manager at the property. Culver Center concedes it neither personally served anyone at the Winston Road address nor mailed the notice to quit to that address.
On Saturday January 10, 2009 Larson spoke on the telephone with Culver Center's managing agent, Juri Rapinski, advising him that, while notice had not been properly served in accordance with the lease terms, Larson would nonetheless investigate any default in rental payments and, if it had not already been sent, would send the rent payment on Monday, January 12, 2009.
On January 12, 2009 Baja Fresh sent its January monthly rental payment in full via United Parcel Service (UPS) overnight delivery to "Culver Center Partners, 325 East Valley Boulevard" in Alhambra. On January 15, 2009 Baja Fresh received a postcard from UPS explaining it had been unable to complete the delivery because Culver Center was unknown at the Alhambra address provided. The matter was clarified on January 15, 2009 after Baja Fresh determined it had inadvertently omitted the name of Preferred Bank on the delivery address, as provided in the change-of-address addendum to the lease. Baja Fresh's rent check was then delivered to Culver Center's agent, Preferred Bank, at the Alhambra address on January 16, 2009.
Culver Center returned Baja Fresh's rental check without cashing it, claiming it had been received beyond the five-day cure period.
4. The Unlawful Detainer Lawsuit and Summary Judgment
On January 20, 2009 Culver Center filed an unlawful detainer complaint.
The court granted Baja Fresh's motion for summary judgment concluding the notice to quit had not been properly served on Baja Fresh. The trial court entered judgment in favor of Baja Fresh and awarded it, as the prevailing party, costs in the amount of $1,595.65 and attorney fees in the amount of $29,225 in accordance with attorney fee provisions in the lease.
1. Standard of Review
A motion for summary judgment is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
2. The Notice to Quit Was Not Properly Delivered in Accordance with the Lease Terms
In commercial leases the landlord and commercial tenant may lawfully agree to notice procedures that differ from those provided in the statutory provisions governing unlawful detainer. (See Folberg v. Clara G. R. Kinney Co. (1980) 104 Cal.App.3d 136, 141 [163 Cal.Rptr. 426] [parties to commercial lease may lawfully agree to notice provisions different from those provided in §§ 1161 & 1162]; 250 L.L.C. v. PhotoPoint Corp. (2005) 131 Cal.App.4th 703, 718 [32 Cal.Rptr.3d 296] [parties to commercial leases may waive rights under Civ. Code].) Thus, if the lease contains service requirements for the notice to quit at variance with the requirements in the unlawful detainer statutes, the lease provisions control. (Folberg, at p. 141.)
Culver Center acknowledges not only that it did not properly accomplish in-person service of the notice to quit or substituted service, but also that it did not mail the notice to the appropriate address in accordance with the lease. Nonetheless, it argues its e-mail to Larson with the notice-to-quit attachment complies with paragraph 31's authorization of notice transmitted by "electronic means."
Culver Center's argument misapprehends the notice provisions in the lease. Paragraph 31 specifies four authorized methods to transmit the notice— (1) mail; (2) telegraph; (3) electronic transmission (for which e-mail would undoubtedly qualify);
Because e-mail by its very nature is not restricted to a particular postal address, but can typically be received from any location that provides computer and Internet access, Culver Center suggests it does not matter where Larson actually received the e-mail, as long as she could have received it from the Winston Road address. Yet, there was no evidence before the trial court that the e-mail was sent to, or even could have been received by, Larson at the designated Winston Road address. While this focus on the physical
3. Larson's Actual Notice Does Not Cure the Deficiency in Service
Culver Center argues, whether or not its service of the notice to quit complied with the lease, the evidence is undisputed that Larson received the notice via e-mail on January 9, 2010. Citing University of Southern California v. Weiss (1962) 208 Cal.App.2d 759, 769 [25 Cal.Rptr. 475] (Weiss), Culver Center contends Baja Fresh's actual receipt of the notice to quit either cures the deficiency in service or results in a forfeiture of any right to contest service-related deficiencies.
In Weiss, an unlawful detainer case, the appellate court found that service of the notice to quit by mail was improper under section 1162. Nonetheless, because the landlord established it had served the notice to quit by mail and the tenant admitted he had received it in the mail, the court found section 1162's requirements for personal service had been satisfied. (Weiss, supra, 208 Cal.App.2d at p. 769 ["personal service may be made through the instrumentality of the mails[;] [t]he post office department, as well as any other type of messenger, may be used to effect personal service"]; accord, Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546] [where defendant managed to successfully evade the process server, but admitted he received the notice landlord posted and mailed to his home address, "personal service under section 1162, subdivision 1, had been effected"]; Wilcox v. Anderson (1978) 84 Cal.App.3d 593, 596-597 [148 Cal.Rptr. 773] [where landlord established notice was properly mailed to tenant and tenant did not contest he actually received the notice to quit, landlord complied with § 1161's personal service requirements].)
Whatever its current merit, the analysis in Weiss, supra, 208 Cal.App.2d 759—a notice to quit, mailed to the tenant, is considered personally served if the tenant acknowledges receiving the notice in the mail—is simply inapposite. Unlike in Weiss and the cases relying on it (see Valov v. Tank, supra, 168
Relying on language in the Rutter Group practice guide stating "proof that the tenant received actual notice apparently will `cure' defective service" (Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2009) ¶ 7:177, p. 7-46 (rev. # 1, 2007)), Culver Center insists Larson's actual receipt of the notice results in a waiver or forfeiture of the ability to challenge deficiencies in its service. However, that notably equivocal language is expressly based on the holdings in Wilcox v. Anderson, supra, 84 Cal.App.3d at pages 596-597 and Valov v. Tank, supra, 168 Cal.App.3d at page 876, cases that, as we have discussed, are inapposite.
Moreover, even if some policy rationale might support such a waiver/forfeiture rule in the residential lease context, there is no basis to apply it in the commercial context where matters of service and waiver are prescribed in the lease itself. (See, e.g., Folberg v. Clara G. R. Kinney Co., supra, 104 Cal.App.3d at p. 141 [commercial lease provisions override statutory service requirements in unlawful detainer].) Nothing in the parties' lease suggests actual receipt of a notice to quit results in the waiver or forfeiture of Baja Fresh's right to service accomplished in the manner prescribed. To the contrary, the lease specifically provides, "No covenant, term or condition, or breach" of the lease "shall be deemed waived except if expressly waived in a written instrument executed by the waiving party." Although Larson acted on the notice to quit by attempting to deliver the rent check, neither her fortuitous receipt of the notice nor her actions in response to it constitutes an express waiver of the notice provisions in the lease.
The judgment is affirmed. Baja Fresh is to recover its costs on appeal.
Zelon, J., and Jackson, J., concurred.